Use “must” to indicate requirements
The word “must” is the clearest way to convey to your audience that they have to do something. “Shall” is one of those officious words that has encumbered legal style writing for many years. The message that “shall” sends to the audience is, “this is deadly material.” “Shall” is also obsolete. When was the last time you heard it used in everyday speech?
Many legal scholars have written about the problem of “shall.” Read a brief summary of several arguments at: Shall and must).
Besides being outdated, “shall” is imprecise. It can indicate either an obligation or a prediction.
Dropping “shall” is a major step in making your writing more user-friendly. Don’t be intimidated by the argument that using “must” will lead to a lawsuit. Many agencies already use the word “must” to convey obligations. The U.S. Courts eliminated “shall” in favor of “must” in their Rules of Procedure.
Instead of using “shall,” use:
- “must” for an obligation
- “must not” for a prohibition
- “may” for a discretionary action
- “should” for a recommendation
The following example demonstrates how much clearer language can be if you follow these suggestions.
Section 5511.1 Free Use of Timber on Oil and Gas Leases
Any oil or gas lessee who wishes to use timber for fuel in drilling operations shall file an application therefor with the officer who issued the lease.
The applicant shall be notified by registered mail in all cases where the permit applied for is not granted, and shall be given 30 days within which to appeal such decision.
Where the land is occupied by a settler, the applicant shall serve notice on the settler by registered mail showing the amount and kind of timber he has applied for.
You must file an application to use the timber on your oil or gas lease for fuel. File the application with our office where you got your lease.
We will notify you by registered mail if we reject your application. You must file an appeal of that decision within 30 days.
You must notify any settler, by registered mail, that you have applied to use timber from your lease. Include in your notice the amount and the kind of timber you intend to use as fuel.
- Charrow, Veda R., Erhardt, Myra K. and Charrow, Robert P., Clear & Effective Legal Writing, 4th edition, 2007, Aspen Publishers, New York, NY, pp. 183-184.
- Garner, Bryan A., A Dictionary of Modern Legal Usage, 2nd edition, 1995, Oxford University Press, Oxford and New York, pp. 939-942.
- Garner, Bryan A., Legal Writing in Plain English, 2001, University of Chicago Press, Chicago, pp. 105-106.
- Garner, Bryan A., Shall We Abandon Shall?, American Bar Association Journal.
- Kimble, Joseph, Lifting the Fog of Legalese, 2006, Carolina Academic Press, Durham, NC, pp. 159-160.
- Wydick, Richard, Plain English for Lawyers, 5th edition, 2005, Carolina Academic Press, Durham, NC, p. 64.